Vessel v. Denomme, 2022 ONCJ 13

ONTARIO COURT OF JUSTICE

Date: 2022.01.03 Haileybury Court File No.: F0-18-0000004

BETWEEN:

DANIKA VESSEL Applicant

— AND —

ANTHONY DENOMME Respondent

Before: Justice John Kukurin

Heard on: November 19, 2021 Reasons for Judgment released on: January 3, 2022

Counsel: Mathieu Perron, for the applicant(s) Jacqueline Strybos, for the respondent(s)

Reasons for Judgment

Kukurin J.

[1] These are my Reasons, after trial, on an application in which the mother was the applicant and the father was the respondent. The application revolved around their son, Findlay, who is now age 6 years.

[2] The application was first returnable Jan 17, 2018 and will soon be 4 years old. It went through a number of conferences, and, in fact, was set for trial before me on April 30, 2021. However, that date was vacated primarily because of a directive from our court’s Chief Judge that was prompted by a spike in the COVID 19 pandemic numbers. The lawyer for one of the parties was subsequently removed as counsel, and then was re-retained as counsel, which development caused some further delay, but the matter proceeded to trial on Nov 19, 2021. It was held remotely. During the litigation history, the Children’s Law Reform Act (CLRA) was significantly amended (effective March 1, 2021) and the provisions of the amended Act applied to this case.

The Claims

[3] There is an anomaly in this court file I will deal with below. However, insofar as this proceeding is concerned, in which the mother is the applicant and the father is the respondent, it is of some importance to identify what the parties sought by way of court orders when the proceeding was commenced, and what they say they wanted at trial, some 4 years later.

[4] The mother’s claims at commencement of this proceeding [1] were:

• “Primary” custody (unspecified but presumably sole?)
• Paternal access on alternate weekends (Fri to Mon am) plus holiday times as per parenting plan.
• CSG table child support
• Order for father’s employer to provide father’s record of income (for two years)
• Costs

[5] At trial [2], her claims were for:

• Sole decision making responsibility
• Paternal parenting time on alternate weekends from Fridays after school until Sundays at 6:00 pm with Wednesdays suppertime visit in the off week
• Prospective child support set at $834 per month based on an annual income of $90,000 of which $78.182 is employment income and the balance is imputed income for ‘under the table’ earnings
• Arrears of child support to be set at $11,237 payable at a reasonable pace.

[6] The father, in his Answer [3] initially sought the following:

• Joint shared custody
• equal (week about) access
• An offset amount of child support based on shared custody
• That neither party speak negatively about the other or discuss the case with the child
• That, under s.46 of the Family Law Act, the mother be restrained from contacting or communicating with herself or any child in her lawful custody, or coming within 50 feet of herself [clearly an error]
• Costs

[7] At trial [4], his claims were for

• Shared decision making responsibility
• Shared parenting time on a week about basis
• Payment of prospective child support of $186.22 per month on an offset based on their respective incomes, namely $78,182 (father estimated for 2021) and $58,666 (mother actual for 2020)
• The father to pay arrears of child support fixed at $3,852 pursuant to a repayment plan
• Neither party to speak negatively about the other party in the child’s presence, or discuss this case or adult issues with the child.

The Order Dated January 17, 2017

[8] Although the Application of the mother in this proceeding was filed May 29, 2018 and was first returnable on July 17, 2018, there was a previous proceeding that resulted in a consent order. [5] The father, as the Applicant, started that earlier proceeding by a Notice of Motion served on the mother on Jan 14, 2017 and returnable on Jan 17, 2017. On the first court date, the parties signed a consent to an interim order. That consent was filed at this trial as Ex 9. The father did not start an application. Nor did he file anything further in that proceeding. In fact, no formal order was ever taken out by either party. The question is “what is the effect of this order, if any?”

[9] The order was obtained on a motion brought prior to a conference. It had to pass the threshold of satisfying the court that there was a situation of urgency, hardship or some other reason in the interest of justice for it to be heard. [6] There is no notation in the court endorsement to that effect.

[10] The fact that the parties consented to this temporary order does not exempt it from compliance with the Family Law Rules. The father did nothing to prepare the formal order despite the fact that the onus was on him to do so. [See Rule 25(2)]. Nor did the court clerk prepare the order even though both parties were self represented [See Rule 25(11)]. And the father did not serve a copy of the order on the mother as he was required to do [See Rule 25(13)(a)]. So what became of this order? Under Rule 40(5) the court clerk is required to serve a Notice of Approaching Dismissal if a case has not been withdrawn, settled, or set for trial after 365 days have elapsed from commencement of the case. [7] The father’s proceeding was well past 365 days with nothing happening. The court clerk should have served the Notice, and the case should have been administratively dismissed. The clerk did not, and the case was not.

[11] The end result is that the order is no more. I will dismiss the father’s proceeding which ought not have resulted in this order in the first place, nor have been allowed to continue with no further court date. It is precisely what the Family Law Rules were created to avoid.

[12] However, it did have some impact in the mother’s proceeding. That was in the fact that both parties seemed to follow the terms of their consent for a period of time. In that sense, their consent is part of the background to the present case.

Historical Background

[13] I set out chronologically, and in abbreviated form, the salient background.

(a) The parties started a relationship in Nov 2014, started cohabiting in Jan. 2015 in New Liskeard, had a child on […], 2015, and separated in late December or early January 2017 with the father moving out of the home.

(b) The child had a serious medical episode in mid Dec 2016 which necessitated being transported to CHEO (Children’s Hospital of Eastern Ontario) in Ottawa where he was diagnosed with cerebral blood clots. Treatment was successful and despite suspicions, there was no definitive cause for this ever established. He was discharged approximately early January 2017.

(c) In early 2016, the father was having some mental health issues and saw a psychologist (Dr. Sroga) who diagnosed him with PTSD. In the same year the mother saw the same psychologist who diagnosed her with Borderline Personality Disorder, Major Depressive Disorder, and Panic Disorder. However, by April 2017, when she consulted a psychiatrist (Dr. Tessier), there was no evidence then of anxiety or panic disorder, with only past traces of Borderline Personality and Adjustment Disorders, and nothing warranting psychiatric services.

(d) The father was employed at Ontario Hydro, initially as a forester. He worked in Muskoka in early 2016, accepted a position in Thunder Bay to start Dec 2016, was laid off and returned to deal with the child’s medical emergency and his stay as a patient at CHEO. He consulted a lawyer and brought the motion that resulted in the temporary order of Jan 17, 2017. He was living with his mother then. In Nov 2017, he was posted to Thunder Bay. He returned to work in New Liskeard in June 2018 and has been promoted since then, currently holding the position of Forestry Technician working a regular 40 hour week. He apparently has his own home in New Liskeard where he lives alone.

(e) The mother returned from CHEO to New Liskeard where she and the child continued to live without the father. They followed the ‘parenting plan’ set out in their consent for most of 2017 and into 2018. The father exercised access when he could travel from his Thunder Bay posting, and his access expanded once he was posted back in New Liskeard. The mother had a ‘boyfriend’ during this time with whom she broke up. She commenced a new relationship with her present partner/fiancé, Eric Charlebois in spring 2018. They relocated to Haileybury. They have a child, Layne, together. Findlay lives with them and attends school n the neighbourhood. Eric apparently has extended family with whom Findlay has had positive contact.

(f) The mother pursued a distant undergraduate education program through Laurentian University in Sudbury. She followed that up enrolling in a Master’s program through Yorkville (sic York) in Counselling Psychology. She also obtained employment with “We Matter” where she works from home and has flex Fridays and 4 weeks vacation. She completed a Triple P parenting program, and has participated in the ‘Brighter Futures’ program operated by the Family and Children’s Services of N.E. Ontario since March 2017.

(g) The father also had a girlfriend but that relationship apparently went south. He appears to have his own residence where he exercises his access visits with Findlay. His mother and sister and father and stepfather are not all that far away. They have a positive relationship with Findlay, but not with the mother.

(h) The father had some kind of episode in mid April 2021 while exercising access. He was hospitalized. He was off work initially on short term disability, and then on long term disability. The Children’s Aid Society was involved and suggested his access be curtailed until their investigation was completed. Ultimately, it was, and the father was cleared to resume access. It appears he is not yet back to work. The exact nature of the disability is not set out in his evidence, but it suggests that it has anxiety and depression at its roots.

(i) Despite there never being any child support order, the father did pay to the mother monies for child support, at times falling behind what they had apparently agreed to. This may have been because of intervening situational factors such as the moves to and from Thunder Bay and his recent hospital stay and absence from work. The mother seeks ‘arrears’ of chid support.

Communication Between Parties

[14] There is a substantial communication problem between the mother and the father. This is not a recent development but has persisted throughout their relationship. The mother accuses the father of having been manipulative and emotionally abusive when they cohabited. The father describes the mother, at one time, as being at the end of her rope with the child, as having a “meltdown”, as acting erratically, calling the Children’s Aid Society and the police on him for no good reason, and physically attacking his mother on another occasion, once again involving police intervention. While this may be more historical than current, it explains much of the current dysfunction in their communications.

[15] The mother recites a litany of instances of interactions with the father that run the full gamut from inadequate response to over reaction of response. She claims she has kept him abreast of information regarding Findlay, but he does not listen, forgets, and is irresponsible in responding to her. He complains that she makes unilateral decisions, tries to exclude him from events involving Findlay, controls and manipulates his access with Findlay to suit her conveniences, and basically marginalizes him as a parent of the child.

[16] It is too late in the day to point out that the consent that they signed is now almost 4 years old and has been overtaken by subsequent events. It was also deficient as it only dealt with paternal access. It did not deal with custody, or with primary or principle residence of the child. It did not deal with parental rights and responsibilities with respect to information from any providers of services to the child. It did not even obligate either parent to inform the other of any events in the child’s life.

[17] The mother suggests that drop offs and pick ups were inconsistent in what transpired. Some were fine; others were not. The father sometimes engaged in emotional dramas. He denies that. She claims that he is late for events, often not attending (eg soccer and gymnastics), acts poorly (eg hockey) and is difficult to get hold of (eg by the school) .She suggest that a computer program like “Our Family Wizard” would greatly benefit both parties, would decrease recriminations about who told who what, and would defuse conflict between them, all the while keeping them both informed of what is going on and upcoming in their son’s world.

[18] In reviewing all of the evidence, I tend to agree with the mother that reducing the communication between the parents would assist them both and would benefit Findlay who is often caught in their crossfire. An order that each is entitled to all information from any individual or entity that provides services to Findlay will put the onus on the parent to deal with such service providers directly to ensure that notices and information are sent to them. If no notice was requested or sent, then it is a matter between the parent and the service provider, not between the parents. Moreover, a program such as that above, will contain a record of who was told what, and when. This may not decrease the pick up/drop off problems but it would at least address one problem, namely the communication to the father through the mother.

Decision Making Responsibility

[19] The first step in resolving the issues in this case is deciding who is to have decision making authority (DMR) for Findlay. The choices tendered are sole DMR to the mother, or joint DMR to both mother and father. The CLRA provides a definition of what DMR means:

S. 18 (1) In this Part,

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities; (“responsabilité décisionnelle”)

[20] Historically, the mother has made all such decisions. These are not day to day decisions. They must be ‘significant’ ones. Moreover, they must arise in the speres of health, education, culture, religion, spirituality and significant extra curricular activities. The mother’s decisions have been good ones for the most part. The child appears to be thriving. The father has been consulted on some and has not vociferously opposed the mother’s choices, in fact has agreed to some of them. The mother appears, at this point in time, to be the more stable of the two parents. She has taken a parenting program, has engaged positively with the child’s service providers, and has a stable two parent family with at least one sibling for Findlay and perhaps another on the way. Her financial circumstances, with her partner Eric contributing, are stable and they have their own home and community. She ensures that Findlay participates in soccer and hockey, both of which the father also endorses, and that he attends school now that his day care days are over. In summary, she has done a creditable job so far and I can see no reason why that should change.

[21] On the other hand, I can see several reasons why there should not be joint DMR. The first and foremost is poor communication. The second is what I would describe as the father’s lack of participation or lack of proactivity in keeping himself informed about matters that impact on the types of decisions that are described in the definition of DMR. The third is the father’s recent mental/medical problems and hospitalization, and the lack of information about what prompted these, and what they were all about. [8] The fourth is the historical record which has the father living and working in Muskoka and Thunder Bay for periods of time, and being an access parent from the time of separation, even after he returned to the New Liskeard area. He has, at most, been a co-custodial parent, and that only until Findlay was just over a year old. In fact, implicit in the consent signed by the parents in Jan 2017 and followed by them into 2018, is the father’s consent to being an access parent. There is considerable jurisprudence that joint custody, now called joint decision making, is not to be ordered for those parents who have poor communication between them. [9] See Kaplanis v Kaplanis; Ladisa v Ladisa.

Parenting Time

[22] Parenting time also has a definition in s.18(1) of the revised CLRA.

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time; (“temps parental”)

[23] This has been a bone of contention for some time. The consent signed by the parties in Jan 2017 gave the father visits with Findlay Fridays at 10 am until Sundays at 6 pm every week. He was responsible to pick up and drop off the child. However, by Nov 2017 he was in Thunder Bay and did not keep to the weekend access regime. When he returned, the weekly access got dropped and somehow he was seeing Findlay every second weekend with an evening in the off week. That weekday was changed as it was creating problems for Findlay at school. In addition, the parents speak of the father having Findlay at Christmas times, during the summer, and spring school breaks, as well as times when the mother went on vacation and the father had Findlay while she was away. Clearly they made some other arrangement for paternal access which was contemplated by their consent, but not documented. In any event, it is clear from the evidence of both parents that the father was always exercising access. In the almost four years that this proceeding has been ongoing, he did nothing to seek a temporary court order that would have defined what parenting time he should have, or that it should approach a week about arrangement.

[24] He states that his current parenting time is every other weekend Friday to Sunday and on alternate (ie in between) weekends from Friday until Saturday mornings. He claims that he has requested more access time but has been refused by the mother, has been given excuses, or has been denied a family calendar of events to plan around. He states that she has not kept him informed of the child’s appointments or their outcomes despite his requests. He disagrees with much of what the mother says about him, and accuses her of dredging up events from long ago.

[25] The father denies her allegations that that he is intoxicated when he has Findlay, or that he sleeps during much of his access visitation times. He claims that he and Findlay have good visits, that they are enjoyable for both of them and that Findlay and he do activities together. He attends Findlay’s hockey practices and games and encourages him in his sports endeavours. Especially now, when he is at home on leave from his work, he would like to spend a lot more time with Findlay.

[26] It is unfortunate that the Office of the Children’s Lawyer declined to get involved or even to do a Voice of the Child Report. The court is left to infer from the evidence what Findlay’s views and wishes are with respect to parenting time. This is not always easy or accurate when the information originates from parents that do not see eye to eye and are adverse in this proceeding.

[27] I find that Findlay has a good relationship with his father. It is a relationship that Findlay perceives to be an “access” or “visitation” relationship. I do not believe that Findlay sees his father’s home as his home. His home is and has always been with his mother. Nevertheless, his father has been a big part of Findlay’s life and continues to be. The court should be guided by the CLRA with respect to parenting time decisions.

[28] Firstly, the court making such decision is mandated to take into account only the best interests of the child as set out in the CLRA

S.24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

[29] Secondly, the court must take into account all factors relating to the circumstances of the child, but must give primary consideration to some.

S. 24(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

[30] Thirdly, the CLRA lists what factors are included in a child’s circumstances.

S.24 (3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[31] Fourthly, the court is directed to give effect to the principle of balancing parenting times between parents that is consistent to a child’s best interests.

S. 24(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

[32] Finally, the court should be wary of dealing with past conduct behaviour.

S.24 (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

[33] I do not find that family violence has been a factor in this family despite allegations of both parents that hint otherwise. There has been no violence directed at the child by either parent who, I do not believe for a second, would cause any harm to the child. The reality is that the parties lived together only a short time and have been separated much longer. Violence in their family is not a factor. Nor do I take past conduct into account with respect to parenting time determinations. The mother has never been present at the father’s visits with Findlay and what she knows of them is only via statements of Findlay or of others, which is clearly hearsay and is not admitted at this trial. Similarly, whatever the father knows about what takes place in the mother’s home is similarly hearsay and inadmissible.

[34] Findlay’s safety, security and well being in the physical, emotional and psychological spheres are primary considerations of the court in parenting time decision making. I have no concerns in these areas. The most concerning is the mother’s allegation that the father drinks and drives when he has Findlay in his care. But the father denies that is so. Her allegations are suspicions more than facts. She has not been present and she does not divulge her sources of information about the father’s states of intoxication which would be hearsay in any event and not admissible at the trial. An odour of alcohol on one’s breath does not translate to intoxication. I was more concerned about the father’s recent mental health problems in 2021 and what impact these should have on his parenting time. I do not fault the mother for being cautious and concerned during his time, particularly as the father was not forthcoming with information. I am no longer concerned mainly because the Children’s Aid Society has intervened, investigated, and give the green light to resumption of paternal access. Moreover, I am satisfied that the father has sought medical help, is working with care providers and being responsible in his mental health recovery plan.

[35] I do not have evidence of any significant concerns to Findlay’s security and well being in any sphere. He is accustomed to his parenting time regime, and by all accounts seems to enjoy time spent with his father even if he may complain a bit at times. Both the mother and the maternal grandmother concede that there is a bond of love and affection between the father and Findlay. The CLRA requires that the court look at all of the child’s circumstances. This also includes the paternal extended family with whom the child is familiar and with whom he has positive relationships. This is true with the maternal grandmother as well, and also with Eric who, since early 2018, has been the father figure and male role model in the mother’s household. It is evident that they engage in activities together which are positive for the child.

[36] The allocation of parenting time is governed by as much time with each parent as is consistent with the child’s best interests. The reality is that Findlay is now in school. His class times are fixed (subject to the vagaries that the pandemic imposes at times) and they take priority to parenting times. The parents have to work around school. The mother and Eric both work and that is another limiting factor the court must take into account. They also have weekends and holiday times that they want to share with Findlay. The father may be on leave from work now, but that will not be forever. Once he returns to work, his work hours will also limit parenting time he can spend with Findlay.

[37] The usual allocation or division is to take all of these into account and arrive at a division of time that permits each parent time to foster the parent-child relationship and to enable the child to mature within his or her constellation of significant others. The father sees equal sharing on a week about basis as the optimal solution. I do not.

[38] The child is now in school and will continue to be a student for the foreseeable future. He goes to school by bus from the mother’s home. The father’s plan would entail some disruption in those arrangements if nothing else. His plan would represent a much more substantial disruption in that Findlay would have two homes, would be parented by his father equally with his mother, would have many adjustments in his life including much less time with his sibling Layne and with Eric. The father does not state how he plans to deal with such disruption. In fact, the father does not say that Findlay even wants to live with him half of the time. From the perspective of the listed s,24(3) factors, the history of care of the child [d], the child’s need for stability [a], the nature and strength of the child’s relationships through his mother and through his father [b], and the plans (or lack thereof) for the child’s care [g], seem to favour Findlay remaining in the mother’s home as his primary or principle residence. The child would, in the father’s plan, be with a single parent half of his time, a big change from his current living environment.

[39] I do not agree that an equal sharing of parenting time is in Findlay’s best interests. That said, It becomes the duty of the court to allocate parenting time. I do so from the perspective of the father as any other time will necessarily be the mother’s.

[40] I agree that, during the school year, the father should continue to have regular parenting time every second weekend from Friday after school until Sunday at 6 pm. This can be extended, if there is no school on the Friday, to Thursdays after school to Sunday at 6:00 pm

[41] I believe that the father should have one other weekend per month when he has the child from Friday after school until Saturday at noon. In absence of agreement, it shall be the first ‘in between’ weekend of each month.

[42] He should have one half of the child’s Christmas break annually which the parties can alternate. Failing agreement, the first half shall be with the father in odd numbered years, and with the mother in even numbered years. If they wish, they can agree, in writing, to splitting Christmas day.

[43] They can alternate the spring school break or divide it between them with such division alternating from year to year. Failing agreement, it shall be divided with the first three days with the father in odd numbered years and with the mother in even numbered years.

[44] The summer months of July and August shall be divided equally by weeks with the father to give notice to the mother in writing by April 1 annually of the four weeks that he chooses to have parenting time, two of such weeks to be in July and two in August. If he does not give such notice, the mother shall give the father notice by April 15 of which two week blocks she chooses, and he will have the other weeks.

[45] With respect to statutory holidays throughout the year, the parties can negotiate these. Failing agreement, I suggest that the mother make two lists and the father will choose one, and she will be allocated the other.

[46] I believe that the father should be allowed telephone or digital parenting time with Findlay three times per week at reasonable hours for up to1/2 hour each.

[47] I encourage the parties to work out parenting time details with the help of their counsel. I admit that I am not sufficiently aware of the many details of Findlay’s life, so any parenting time allocations the court makes may cause problems for him or for his parents. I am prepared to concede that they may make better decisions than the court can, so long as they are mutually agreeable ones.

[48] Finally, while I make no order, I highly recommend that the parents utilize ‘Our Family Wizard’ or a similar program to communicate with respect to Findlay. They are both technologically savvy. The cost of the program is within their means.

[49] I also plan to include an order that mirrors s.20(5) of the CLRA:

S. 20(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.

This will enable the father to access information directly from Findlay’s school, doctor, dentist, sports leagues and any other persons providing services to Findlay.

Child Support

[50] The claims with respect to child support are somewhat problematic. They are so for several reasons:

(a) The mother’s claim for child support is in her application which was served on the father June 4, 2018 and was returnable July 17, 2018. She made no claim for retroactive child support, and has never amended her application to include such claim.

(b) The mother’s child support claim is based on a determination of the father’s annual income that is partially from his Line 150 T-1 Tax Return, and partially from income she wants the court to impute to him.

(c) The father says that he and the mother made an agreement that he would pay $700 per month in child support but this is not documented in any agreement or on any order of this court. The mother corroborates this but says this agreement was made without her having the father’s financial information.

(d) The father claims that he made payments of child support to the mother. However, these were not always consistent and not in the same amount. They were not made through FRO so there is no dependable way to quantify these.

(e) The father is presently on disability benefits which are not going to be forever.

[51] With respect to retroactive child support, this is child support for the time before the application was filed. There is no claim for this. I do not deal with this. The mother has had plenty of time to amend her application. She has not. She also has had counsel and has had many conferences where she could have made this claim known. This court will deal with her child support claim as of the date that her application was made. For specificity, this I interpret to be July 1, 2018.

[52] The mother relies on imputed income based on the father’s “sideline” business of removing trees. She provides a list of persons he has done work for and a business card of the father for a business he operated. Regrettably, she has no time frames nor any actual amounts he actually earned. The father responds to these allegations explaining that his business was before he even met her in 2014, that his work was for relatives of neighbours, and that when he was paid, most of the monies were spent on materials or equipment and were modest at best. It is clear that he did some work on the side but for the court to impute income to him that mother needs better evidence than what she has provided. Moreover, it is important that she prove when this income was earned.

[53] In Drygala v Pauli [10] the court said [at paragraph 44]

“ … Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.”

[54] Homsi v Zaya [11] confirms that the onus of proving the amount of income that should be imputed lies on the recipient spouse, in the present case, the mother.

[55] The reason for imputation of income is to provide a basis for ordering child support where a parent is shirking his or her duty to his child. Imputation is a discretion give to the court. The father in this case is not someone who has not supported his child. In fact, he has done so voluntarily for a number of years, although perhaps in not the correct amount according to the Guidelines. I do not impute income to him on the inadequate evidence of the mother, and even less so on his explanatory evidence.

[56] For purposes of the child support claim, I disregard any periods before July 1, 2018. Accordingly, I look at the father’s annual income from his Notices of Assessment and his Income tax Returns and T-4’s from 2018 to 2020. These yield the following in terms of incomes and support amounts

Year Amount CSG table/mo Yearly Amount Paid Difference

2018 $88,906 $ 825/2 $ 9,900/2 $8,650/2 $ 625

2019 $110,942 $ 996 $11,952 $12,020 $ (68)

2020 $102,111 $ 927 $11,124 $11,836 $ (712)

2021* $ 81,033 $ 755 $ 9,060 $ 3,750 $ 5,310

(*see paragraph 57 to 60 below) $5,155

[57] For 2021, the father’s income has changed because of his mental health illness and his leave from work. I do not find that these were deliberate developments contrived by him and accept them as events that have happened. The best information is that he became ill in January. He was receiving short term disability from his employer. Then in April be started receiving long term disability (LTD) benefits from Canada Life.

[58] The father has provided a pay statement for the period ending June 23, 2021. This shows he received from his employer in 2021 the sum of $34,753.

[59] The Canada Life LTD benefits shows that he received $1,672 for part of April 2021, and $5,576 per month thereafter.

[60] Accordingly, in 2021 he received

$ 34,753 from his employer (income and short term disability)

$ 1,672 from Canada Life for April (LTD)

$ 44,608 from Canada Life (LTD at $5,576/mo X 8 mo -May to Dec)

$81,033 total gross income for 2021

[61] The income for 2019 was not $115,102 but rather $110,942 [12]. The amounts paid for 2019, 2020 and 2021 were the amounts stated by the father as he had inter bank transfers to substantiate these. The mother had none. The amount paid in 2018 was taken from the mother’s evidence as the father did not say what he had paid in 2018. However, he is required, pursuant to my proposed order to pay for only one half the year 2018, so I have, in the interests of expediency, given him credit for one half of what the mother says he paid in that year. For 2021, I have taken the most recent information of the father that he has paid as of the 29th of October 2021 the total of $3,750. If more has been paid since then, he should have a credit for this additional amount. In summary, the father is in arrears $5,155 to the end of 2021.

[62] His prospective child support from 2021 onwards is normally based on his 2021 annual income. However, this is not reflective of his income when actually working. Therefore, I will make only a temporary child support order commencing Jan 1, 2022 to be adjusted and made final once he is back to work. The temporary order will be based on his actual 2021 annual income.

[63] As for his arrears, both parties seem to have left this in the hands of the court. I have some sympathy for the father’s plight as he has a reduced income. However, that has limits. When I look at his financial statement, I see a number of discrepancies other than the abysmal arithmetic. He claims debt payments of $1,000 per month but his debts are two lines of credit loans on which he pays a total of $611 per month. His mortgage is included in his housing expenses. He cites auto loan or lease payments of $600 per month but does not disclose any loan or lease and his auto is a 2005 Honda Pilot! In short, I am skeptical that the father is or must spend over $7000 per month – and this does not include his child support which is conspicuously absent anywhere in his financial statement.

[64] I believe that he should pay at minimum $250 per month on arrears until they have been discharged in full. He is presumably living a somewhat reclusive lifestyle during the pandemic and during his convalescence and should be able to afford this amount.

Other matters

[65] The father’s claim for a restraining order against the mother will be dismissed. It was a claim that was never abandoned. There is no evidence of any need for such order.

[66] The father’s claim for a mutual order that neither party speak negatively about the other party in the child’s presence, or discuss this case or adult issues with the child will be dismissed as there is no evidence that is presented that, on the balance of probabilities persuades this court that this has been a problem or that it is necessary.

[67] The mother’s claim for father’s employer to provide father’s record of income (for two years) will be dismissed as she has never proceeded with such claim in four years.

[68] While these are my Reasons, they are not my order. I delay this pending any suggestions by the parties and their counsel as to any difficulties that may arise from the order I anticipate making. I find that orders have long term effects and parties need some time to reflect on what consequences an order may bring about and on their abilities to handle any problematic ones.

[69] I thank counsel for their submissions and for managing to get their evidence and submissions in within the one day that was available for trial.

Released: January 3, 2022 Signed: “Justice John Kukurin”

[1] From the mother’s application, never amended

[2] From the mother’s opening statement

[3] From the father’s Answer, never amended

[4] From the father’s opening statement

[5] The endorsement reads “ Order to go in accordance with the minutes of settlement or consent filed ”. It also indicates “ On consent, approval as to form and content is dispensed with ”

[6] Rule 14 (4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed. O. Reg. 89/04, s. 6 (3); O. Reg. 383/11, s. 3 (1). Rule 14 (4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. O. Reg. 202/01, s. 4 (1); O. Reg. 89/04, s. 6 (4).

[7] Rule 40 (5) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started, and that time has not been lengthened by an order under subrule (3). O. Reg. 439/07, s. 4 (2); O. Reg. 140/15, s. 4; O. Reg. 781/21, s. 10.

[8] These were in relation to the father’s mental health according to him. He was admitted to the New Liskeard hospital Mental Health Unit, then transferred to North Bay Psychiatric Hospital. He has not provided any medical report from a treating physician, but only a nurse’s list of appointment dates. He mentions only that he has a counsellor, has had ADHD since age 8, takes medication for anxiety and depression and that his family physician (Dr. Roedde), his psychiatrist (Dr. Fleury) and his RPN ( Ms Goddard continue to work with him.

[9] See Kaplanis v Kaplanis , [2005] O.J. No. 275 (Ont C.A.) ; Ladisa v Ladisa , [2005] O.J. No. 276 (Ont C.A.)

[10] Drygala v. Pauli (2002) , 61 O.R. (3d) 711 ; O.J. 3731 (Ont. C.A,)

[11] Homsi v. Zaya, 2009 ONCA 322 (Ont. C.A.)

[12] From the father’s T-1 for 2019. His Line 150 income was $112,023 of which $1,081 was from RRSP income, and is his own money, which is not included in 2019 income. The same reasoning applies to his 2020 income.